Potential Broader View of ADA May Impact Online Retailers

Posted: March 22, 2013

According to a March 22, 2013 report in The Wall Street Journal (WSJ), the boundaries of the Americans With Disabilities Act (ADA) are being redefined as advocacy groups push agendas and lawsuits that assert retailers have a legal obligation to make their websites as accessible as their stores.

Although the theory that the 1990 Americans with Disabilities Act applies to websites has been dismissed by several courts, the National Federation of the Blind and the National Association of the Deaf have won legal victories against companies such as Target and Netflix, both of which settled the cases after federal judges rejected arguments that their websites were beyond the scope of the ADA.

The Target case, settled in 2008, was the first time a federal district judge ruled that the law applies to websites when they act as a gateway to a brick-and-mortar store. In June 2012, a federal district judge in Massachusetts ruled that the ADA's accessibility requirements apply to website-only businesses, siding with the National Association of the Deaf against Netflix.

The ADA requires equal access to "public accommodations," which include retail stores. It makes no mention of websites as a public accommodation.

"Congress never contemplated the Internet at the time, and if they had, they would have included it," Eric Goldman, a professor at Santa Clara University School of Law,tells WSJ.

But that could change with the U.S. Department of Justice expected to issue new regulations on website accessibility later in 2013 that could take a broad view of the ADA's jurisdiction over websites.That could mean, reports WSJ, that websites will be required to include spoken descriptions of photos and text boxes for the blind, as well as captions and transcriptions of multimedia features for the deaf.

WSJ reports that lawyers who represent companies in ADA cases believe an expansive reading of the law could expose companies to a rash of frivolous lawsuits and would face a considerable burden in ensuring websites are compatible with the latest technologies for aiding the disabled.

"It's in everybody's interest to make sure that disabled people have access to websites, but whether the law is the avenue to achieve that change is another question," Matthew Kreeger, who represented Target, tells WSJ. "It's kind of a blunt instrument."

The costs of making a website accessible vary based on the complexity of a website, and it is much cheaper to build accessibility features into a new site than to retrofit an old one, experts said.